United States v. Rose , 112 F. App'x 932 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7123
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ETON ROSE, a/k/a Tony Barrett,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-01-421; CA-03-613-1)
Submitted: November 3, 2004 Decided: November 19, 2004
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
Remanded by unpublished per curiam opinion.
Eton Rose, Appellant Pro Se. Sandra Jane Hairston, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Eton Rose seeks to appeal the denial of relief on his
motion filed under 28 U.S.C. § 2255 (2000). The notice of appeal
was received in the district court approximately seven days after
the expiration of the appeal period. Under Fed. R. App. P. 4(c)(1)
and Houston v. Lack, 487 U.S. 266 (1988), the notice is considered
filed as of the date Rose properly delivered it to prison officials
for mailing to the court. The record does not reveal if or when
Rose complied with the requirements of Fed. R. App. P. 4(c)(1).*
Accordingly, we remand the case for the district court to obtain
this information from the parties and to determine whether the
filing was timely under Fed. R. App. P. 4(c)(1) and Houston v.
Lack. The record, as supplemented, will then be returned to this
court for further consideration.
REMANDED
*
Although Rose indicates that he signed the notice of appeal
on June 26, 2004, it is not clear whether he submitted the notice
to prison officials in a timely manner or whether he even utilized
his institution’s internal mail system.
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